McCoy v. DePuy Orthopaedics, Inc.

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 BARBARA MCCOY, Case No.: 22-CV-2075 JLS (SBC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION TO REOPEN DISCOVERY FOR THE LIMITED PURPOSE OF 14 DEPUY ORTHOPAEDICS, INC.; DISLOSING DR. STEPHEN LI AS A DEPUY PRODUCTS, INC.; 15 FACT WITNESS DEPUY SYNTHES, INC.; 16 JOHNSON & JOHNSON; JOHNSON (ECF No. 114) & JOHNSON SERVICES, INC.; and [17] JOHNSON & JOHNSON 18 INTERNATIONAL, 19 Defendants. [20] 21 Presently before the Court is Plaintiff Barbara McCoy’s Motion to Reopen 22 Discovery for the Limited Purpose of Disclosing Dr. Stephen Li as a Fact Witness (“Mot.,” 23 ECF No. 114-1). Defendants DePuy Orthopaedics, Inc.; DePuy Products, Inc.; DePuy 24 Synthes, Inc.; Johnson & Johnson; Johnson & Johnson Services, Inc.; and Johnson & 25 Johnson International’s (collectively, “Defendants”) filed an Opposition to the Motion 26 (“Opp’n, ECF No. 115), to which Plaintiff submitted a Reply (“Reply,” ECF No. 116). 27 The Court took the matter under submission without oral argument pursuant to Civil Local 28 Rule 7.1(d)(1). See ECF No. 117. Having carefully reviewed the Motion, the Parties’ 1 arguments, and the law, the Court DENIES Plaintiff’s Motion. 2 BACKGROUND 3 The Court incorporates the recitation of this action’s factual and procedural history 4 included in the Court’s July 14, 2023 Order (the “Order,” ECF No. 103). The Court thus 5 sets forth below only those facts relevant to the instant Motion. 6 Plaintiff’s Motion does not represent the Parties’ first dispute about Dr. Stephen Li 7 (“Dr. Li”). Plaintiff previously designated Dr. Li as a biomedical expert. Order at 3. 8 Defendants, however, moved to disqualify Dr. Li on the ground that he had “‘switched 9 sides’ in the exact same litigation.” ECF No. 44 (“Disqual. Mot.”) at 2. Defendants 10 claimed that Dr. Li had periodically served as one of their consulting and testifying experts 11 for decades. See Order at 4. During that time, per Defendants, Dr. Li received and helped 12 formulate Defendants’ legal strategies relating to the expert opinions he intended to provide 13 on behalf of Plaintiff in this matter. See id. at 7. Countering, Plaintiff contested 14 Defendants’ version of events and argued that public policy weighed against disqualifying 15 Dr. Li. See generally ECF No. 69 (“Pl.’s Opp’n to Disqual. Mot.”). 16 After oral argument, the Court granted Defendants’ Disqualification Motion. 17 See generally Order. The Court found that Defendants had (1) established a reasonable 18 belief that a confidential consulting relationship existed between DePuy and Dr. Li at one 19 time, see id. at 14; and (2) shown that confidential information relevant to this litigation 20 was disclosed by DePuy’s counsel to Dr. Li, see id. at 16. The Court also noted, though, 21 that the timing of Defendants’ Disqualification Motion smacked of gamesmanship and 22 risked prejudice to Plaintiff. See id. at 16–18. Ultimately, however. considerations of 23 judicial integrity tipped the balance in favor of disqualification, as other courts had 24 disqualified Dr. Li in cases remanded from the same multi-district litigation (“MDL”) of 25 which this case was a part. See id. at 18–19. The Court was also mindful of the need to 26 prevent the appearance of an expert “switching sides.” See id. 27 Plaintiff’s instant Motion followed. 28 / / / 1 DISCUSSION 2 I. Federal Rule of Evidence 701 3 Lay opinion testimony is governed by Federal Rule of Evidence 701. Rule 701 4 provides: 5 If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the [6] witness's perception; (b) helpful to clearly understanding the 7 witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge [8] within the scope of Rule 702. [9] 10 Fed. R. Evid. 701 (emphasis added). As the rule indicates, “lay testimony ‘results from a 11 process of reasoning familiar in everyday life,’ while expert testimony ‘results from a 12 process of reasoning which can be mastered only by specialists.’” United States v. Corona, [13] 359 F. App’x 848, 852 (9th Cir. 2009) (quoting Fed. R. Evid. 701 advisory committee’s 14 note to 2000 amendment). 15 The meaning of Rule 701 is clear: “[l]ay opinion testimony [should] not . . . provide 16 specialized explanations or interpretations that an untrained layman could not make if 17 perceiving the same acts or events.” Joshua David Mellberg LLC v. Will, [18] 386 F. Supp. 3d 1098, 1101 (D. Ariz. 2019) (internal quotation marks omitted) (quoting 19 Fresenius Med. Care Holdings, Inc. v. Baxter Int’l, Inc., No. C 03-1431 SBA, [20] 2006 WL 1330002 , at *3 (N.D. Cal. May 15, 2006)). 21 II. Plaintiff’s Motion 22 Plaintiff insists she is not attempting to circumvent the Court’s prior disqualification 23 of Dr. Li, as she “understands that Dr. Li is not permitted to testify as an expert 24 witness . . . or offer expert opinions with respect to the medical literature.” Mot. at 1. 25 Plaintiff also notes that, since Dr. Li’s disqualification, she has designated a new expert to 26 offer opinions on how Defendants’ product is “defective in design, the availability of safer 27 alternatives, and Defendants’ failure to warn, among other things.” Id. 28 / / / 1 Instead, Plaintiff argues that Dr. Li can testify about his “unique role in serving on 2 the 2001 [Food and Drug Administration (“FDA”)] panel meetings” without providing 3 expert testimony. Id. Plaintiff explains that said meetings “directly analyzed the problems 4 and concerns of an orthopedic panel on metal-on-metal hips.” Id. And, at the August 8, 5 2001 meeting, Dr. Li presented his views on that topic, commenting on “the absence of 6 clinical data, . . . the adverse reactions caused by metal ion debris, the lack of preclinical 7 wear testing, and the inadequacy of hip simulation testing.” Id. at 2. 8 Specifically, Plaintiff asks that “Dr. Li be permitted to be called as a fact witness to 9 testify on the limited issue of [1] who he is, [2] what the FDA asked him to do with respect 10 to the 2001 [FDA] Panel, and [3] the concerns he shared with the panel as lead reviewer.” 11 Id. To support her Motion, Plaintiff argues that Dr. Li’s testimony is “necessary to 12 demonstrate, by a first-hand account, . . . the safety concerns with metal-on-metal hips” 13 felt by “those in the orthopaedic community.” Id. 14 III. Analysis 15 In their briefs, the Parties present several arguments in support of their respective 16 positions. The Parties, for example, contest whether Dr. Li’s FDA panel testimony is 17 relevant to this case, constitutes impermissible hearsay, or would prejudice Defendants. 18 See generally Mot.; Opp’n; Reply. 19 But none of the above arguments speak to Rule 701(c). Specifically, Plaintiff makes 20 no attempt to explain how Dr. Li could testify about “what the FDA asked him to do” and 21 the “concerns he shared with the panel,” Mot. at 2, without relying on “scientific, technical, 22 or other specialized knowledge.” Indeed, by Plaintiff’s own description, Dr. Li’s 2001 23 testimony was based on such expert knowledge. See Pl.’s Opp’n to Disqual. Mot. at 4 n.4 24 (stating “Dr. Li expressed,” at the FDA panel, “that he believed the testing was inadequate” 25 and “that the risks of metal-on-metal outweighed the benefits based on what information 26 was available at the time”). And, as Defendants point out, a review of the FDA panel’s 27 transcript further confirms that Dr. Li’s contributions in 2001 were based on his scientific 28 / / / 1 || and specialized knowledge.' See Opp’n at 5. Plaintiff conspicuously provides no response 2 ||to that contention, even though the “Argument” section of Plaintiff's Reply is double the 3 || length of her initial Motion. 4 The Court is also concerned that allowing Dr. Li to testify in the limited capacity 5 || Plaintiff proposes could confuse the jury. Where a witness testifies as both a lay and expert 6 || witness, her “status as an expert could lend [her] unmerited credibility when testifying as 7 percipient witness.” United States v. Vera, 770 F.3d 1232, 1242 (9th Cir. 2014). Even 8 ||assuming, arguendo, that Dr. Li could testify as a lay witness only, Plaintiff's request 9 presents the same issue. Plaintiff wants Dr. Li to testify about “who he is,” referring 10 || presumably to his status as “one of the rare individuals who has ‘a long and public history 11 supporting the opinions rendered in the case.’” Mot. at 2 (quoting Order at 19). But Dr. 12 || Li’s status as such a rare individual grew precisely from his expertise, the same quality that 13 || could lead a jury to grant his opinions great weight. 14 CONCLUSION 15 While the Court remains sympathetic to Plaintiff's counsel’s point, raised at a prior 16 || hearing, that “it is difficult to find an expert” like Dr. Li, see Order at 19, the Court simply 17 not see how Dr. Li could testify in this case in any capacity other than that of an 18 |/expert. As the Court previously disqualified Dr. Li—and no grounds for reconsidering that 19 ||decision have been raised—Plaintiff's Motion to Reopen Discovery (ECF No. 114) is 20 || DENIED. 21 IT IS SO ORDERED. 22 Dated: November 8, 2023 (een 3 on. Janis L. Sammartino United States District Judge [26] 2T YO 9g ||! Plaintiff previously provided the Court with the transcript of the FDA panel’s August 8, 2001 meeting. See ECF No. 69-5.